170 Mass. 405 | Mass. | 1898
If the plaintiff’s debt had not been in the form: of a judgment, it would be difficult to distinguish the present-case from Maxwell v. Cochran, and Maxwell v. Clarke, 186 Mass. 73. In those cases it is said: “ The object of the Gen. Sts. c. 118, §78, was to prevent the subsequently acquired property of the debtor who had been discharged in insolvency from being seized or held in any manner for the payment of his debts until the non-resident creditor should have obtained his judgment thereon at law.”
In Venable v. Rickenberg, 152 Mass. 64, the suit was upon a judgment, and the attempt was made to reach in equity a debt due to the defendant which was of a nature to be attached by trustee process. The bill was dismissed, on the ground that the property to be reached was in its nature- attachable by trustee process, and whether Pub. Sts. c. 157, § 83, in the particular case, forbade such an attachment or not, there was no jurisdiction in equity. There are expressions in the opinion not necessary to the decision, but the case did not decide whether an attachment by trustee process in a suit on the judgment could or could not have been maintained.
In Sanborn v. Royce, 132 Mass. 594, it was decided for the first time in this Commonwealth that the property of a partnership could not be attached at law in an action on a debt due from one of the partners. The inevitable inference was that the remedy was in equity. St. 1884, c. 285, § 2, enacted certain provisions concerning the procedure in equity in such a case, making a distinction between the cases in which the plaintiff’s
When the plaintiff’s debt is in the form of a domestic judgment, the procedure by bill in equity is in effect a mode, and the only mode, of levying execution upon the interest of the judgment debtor in partnership property. It is doubtful whether a statute would be constitutional which denied to a non-resident judgment creditor, whose debt had not been discharged by the insolvency of his debtor, all process which would enable such a creditor to reach in satisfaction of the judgment the interest of the debtor in partnership property.
Section 83 of the Pub. Sts. c. 157, purports to discharge the debtor “from arrest or imprisonment in any suit or upon any proceeding for or on account of a debt or demand provable against his estate.” It goes further, and purports to exempt property acquired subsequently to the time of the first publication of the notice of issuing the warrant from attachment by trustee process or otherwise, etc. It may happen that all the property which a debtor has is his interest in a partnership. If the present suit cannot be maintained, the debtor’s interest in the partnership property cannot be reached at all by the judgment creditor. We think that the section was not intended to forbid the levy of an execution upon any property of the debtor which is not generally exempt from being taken on execution, and that, as the present suit is the only method whereby the debtor’s interest in the partnership property can be reached and applied in satisfaction of the judgment, the process employed is tantamount to the levying of an execution, and is not within the provisions of the section. It follows that, on the agreed statement of facts, the decree dismissing the bill must be reversed, and a decree entered for the plaintiff, the form of which may be settled by a justice of the Superior Court.
So ordered
